Friday, January 29, 2016

The likely outcome of Friedrichs will hurt labor -- but it won't destroy it

Two weeks ago, progressives had their days ruined by oral
arguments in the Supreme Court in the caseFriedrichs
vs. California Teachers Association. The case has led to numerous
breathless headlines declaring that this will be the end of public sector
unions in the United States, comparing the case to what happened to unions in
Wisconsin, where organized labor has been in a depressing tailspin since the
passage of Act 10 in 2011, which eliminated collective bargaining rights for
most public sector unions.

Those comparisons are far overblown: Freidrichs will hurt
public unions, but they still will retain most of their rights. Here, I’ll
discuss what the likely decision against the unions will do to hurt worker’s
rights, but I’ll also emphasize that it’s important to remember that workers
will retain considerable rights to bargain – unlike in Wisconsin.

First the bad:

It seems that a
majority of justices are willing to take the radical step of declaring that
anything public sector unions do, including the nuts and bolts of collective
bargaining, is an inherently political activity.

Therefore, public sector unions assessing mandatory fees
from non-members would be unconstitutional and violate non-members first
amendment rights to free speech, despite the fact that unions have to represent
all of their employees in the bargaining unit and that all members of the
bargaining unit shares in the higher salaries, better benefits and better
working conditions achieved through collective bargaining.

Never mind that unions are democratically chosen as
bargaining agents, and (usually) governed by local officials directly elected
by the membership and can be decertified by a majority vote if the bargaining
unit doesn’t like what it’s doing. (Apparently the results of democratic
elections only matter for Sam Alito when they enact discriminatory sanctions
against gay people)

Never mind that for 40 years, precedent established by Abood vs. Detroit Federation of Teachers, which reasoned that public sector unions
(if permitted by state law) can charge agency fees to all members of the
bargaining unit to cover representation costs, so long as they didn’t charge
non-members money for specifically political activities.

So things are bad. Justice Sam Alito’s almost inevitable
opinion is going to hurt the finances of a lot of public sector unions both at
the local and at the state and national level. Making membership optional will
not only lead to unions losing agency fees from workers who aren’t members, but
will likely cause some members to opt out when they realize they can get the
benefits of the union contract without having to pay the union. For some units,
this will cause financial catastrophe. Think about what would happen to U.S.
government functions if it were optional to pay taxes (Or just think about what
already happens to U.S. government finances because for some large multinational businesses and lucky wealthy individuals, it sort of is optional
to pay taxes -- at least in the U.S.).

Now the not-so-bad:

But Friedrichs isn’t the end of public sector unionism or
unionism period. So, in the panic let’s remember the power that public sector
unions will retain in states that we can elect good governments in.

A comparison to Scott Walker’s Wisconsin is useful.

Public sector unions, especially those
recognized as formal bargaining agents, have collapsed in the state. However, that’s
because Act 10 essentially made it illegal to collectively bargain for all non-public safety employees. That doesn't mean merely making agency fees
illegal (what Friedrichs and "Right-to-Work" laws will do), but includes almost everything else a union and its employer would want to govern over as well (see the legislation summary section here).

Take the most
egregious example: To serve as a collective bargaining agent, unions have to
win a recertification election every year with a majority of those in the
bargaining unit, not just those voting. Essentially, not voting is the same as
voting “no.” The assumption goes from the status quo continuing to “no union as
bargaining agent unless you can win an election rigged against you every year.”

What’s worse is that units that manage to win the election
can’t really bargain anything. Contracts can only be for one year, and the only
thing that the contract can cover is the size of a raise, which can’t be more
than inflation Some categories of workers in the state university system even lost those rights.

That’s right, in Wisconsin, public sector employees (aside from police and
firefighters, of course) can essentially only bargain over how much to cut
their pay every year. No rights to bargain for health benefits or insurance
premiums (which tripled for graduate employees at the University of Wisconsin
before and after the passage of Act 10). No rights to bargain for fair hiring
or firing policies. No rights to bargain for safe working conditions, or class
sizes, or patient loads, or hours, or vacation time, or sick time, or non-arbitrary
disciplinary procedures or LGBT protections, or sexual harassment reporting
standards or….

You get the picture.

The good news is that an adverse ruling in Friedrichs won’t
do any of these things. It would take
away a critical means of funding union activities, and do so based on a dubious argument,
but in itself doesn’t take away the rights to bargain for wages, benefits, paid
time off or workplace conditions. Those are all still governed by applicable
state laws.

It’s true that in some states, many of those rights are
being trimmed back, so the counsel here isn’t “don’t worry, be happy,” but
rather “don’t give up the fight in despair – we still have plenty to fight for
and many areas that we can protect or advance our interests.” Unions still have
many things to bargain over, especially in states in which we elect good public
officials. Elections still matter. And
so will collective bargaining. And so
will the labor movement.